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November 10, 2009

Eighth Circuit affirms rejection of death row prisoners' attack on Missouri's lethal injection protocol

An Eighth Circuit panel today has ruled on an appeal concerning a constitutional attack on Missouri's execution protocol in Middleton v. Crawford, No. 08-2807 (8th Cir. Nov. 10, 2009) (available here).  Here is the unofficial summary of the ruling from the Eighth Circuit website:

Missouri death row prisoners challenging Missouri's execution protocol did not allege a sufficiently substantial risk of serious harm or a sufficiently imminent danger to state an Eighth Amendment claim, and the district court did not err, as a matter of law, in determining that the prisoners had failed to state a claim for violation of the Eighth Amendment; no error in denying motions to intervene.

November 10, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Brief Sixth Circuit opinion rejects Blakely challenge to Michigan sentencing system

This morning the Sixth Circuit issued a short opinion in Chontos v. Berguis, No. 08-1031 (6th Cir. Nov. 10, 2009) (available here), in which the panel concludes that Michigan's distinctive structured sentencing scheme does not have a Blakely problem.  I have taken the liberty of reprinting some critical comments about this ruling from an e-mail sent my way by a helpful reader:

As detailed in this article appearing now as Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely v. Washington, 57 Drake L. Rev. 643 (2009), the issue is a lot more complicated than the Sixth Circuit panel assumed today, and deserves a lot more attention.  Michigan does not have an "indeterminate" sentencing scheme, at least not as the Supreme Court has used that term.  Further, Harris does not save the Michigan scheme because Michigan's mandatory guidelines regularly raise the ceiling on judges' discretion, not just the floor.  In short, Michigan's scheme doesn't deserve the free pass that the Sixth Circuit just handed out.

November 10, 2009 in Blakely Commentary and News, Blakely in the States, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Is Carrie Prejean technically subject to 5-year mandatory minimum federal sentence for distributing child porn?

As detailed in this AP story, which is headlined "Ex-Miss California admits to making sex tape," it appears that a high-profile public figure is now admitting that she has engaged in behavior that makes her technically guilty of a federal crime under 18 USC 2252(a)(2) (which is punished through a five-year mandatory minimum federal prison term).  Here are the basics:

Former Miss California USA Carrie Prejean calls a sex tape she made for an ex-boyfriend several years ago "the biggest mistake of my life."  Prejean told Fox News on Monday and NBC's "Today" show on Tuesday that she shot the X-rated video of herself alone when she was 17 and sent it to a boyfriend.

Because Prejean was 17 at the time of the making of this "sex tape," it technically involves was federal law calls "use of a minor engaging in sexually explicit conduct."  I am not sure if Prejean could technically be guilty under 18 USC 2251 for producing child porn and so be subject to a 15-year mandatory minimum, but I am confident that she could be technically subject to the five-year minimum under 18 USC 2252(a)(2) for distributing material involving the sexual exploitation of minors.

With this post I am not — repeat, I am not — urging that Carrie Prejean be subject to federal (or state) child porn prosecution or be facing any criminal charges at all.  Rather, I am just hoping to use this high-profile incident as a teaching moment to help make everyone aware of how broad federal child porn laws technically sweep.

Indeed, in addition to potentially making Carrie Prejean a criminal, broad federal child porn laws could arguably be applied to anyone who seeks to post or link to a video of the Prejean sex tape.  Though possibly a media organization could assert a First Amendment defense when reporting on this new news story, lower courts have generally been disdainful of constitutional defenses raised in federal child porn actions.

November 10, 2009 in Sex Offender Sentencing | Permalink | Comments (29) | TrackBack

Do cases like the DC sniper and the Fort Hood shooter and Ohio serial killer ensure death's vitality?

Reviewing some of the media coverage of sentencing issues this morning confirms my view of why it is always going to be difficult for death penalty abolitionists to convince the majority of Americans to be opposed to the death penalty in all cases for all crimes.  Specifically, this week all the major death penalty talk centers around (1) Virginia's efforts to execution the DC sniper, John Allen Muhammad, and (2) the consideration of capital prosections of the Food Hood shooter, Malik Nadal Hasan, and Ohio's sex offender serial killer, Anthony Sowell.

Notably, in all three of these cases, we all must confront obviously deranged offenders who have committed multiple brutal and senseless murders that have terrorized local communities and the nation as a whole.  In none of these there cases is there any serious basis to doubt the guilt of the offender, and there likewise does not seem to be a good chance that poor lawyering or racial bias or some other procedural defect explains why the case is to be a capital case.

In other words, with such potent capital punishment poster children like Muhammad and Hasan and Sowell garnering much media coverage and capturing most of the public's attention, I suspect it will remain very hard for death penalty abolitionists to change the hearts and minds of average Americans to be opposed to the punishment of death in all contexts.

November 10, 2009 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (33) | TrackBack

Texas conviction of FLDS member resulting in fascinating jury sentencing experience

As detailed in this local report, which is headlined "Testimony in Sentencing for FLDS Member," the recent conviction in Texas of an FLDS member on sex charges has now led to a fascinating jury sentencing proceeding:

A jury that convicted a member of the Utah-based FLDS Church will begin deliberating his sentence. After a day-long hearing on Monday that included hours of testimony, a judge set closing arguments and deliberations on Tuesday in the case of Raymond Jessop. Jessop, 38, was convicted of child sex assault for fathering a child with a 16-year-old girl who was a polygamous wife. He faces up to 20 years in prison.

The jury is deciding the sentence. On Monday, testimony included an FBI agent, a pair of Texas Rangers who testified about documents, and two former members of the polygamous church.

Here are more details about the jury sentencing proceedings in this case from additional media accounts headlined "Talk of 'celestial wives,' long-term effects of assault," and "Sentence is expected Tuesday for FLDS man":

Jurors are to report back 9:30 a.m. today to the improvised 51st Judicial District Courtroom to hear closing statements from the defense and prosecution.  Then they will begin the task of deliberating on what his punishment should be for sexually assaulting a 16-year-old girl in November 2004 at the Yearning for Zion Ranch near Eldorado.

Jurors will have to choose between two portraits drawn in the courtroom of Jessop.  Is he the self-sacrificing, hardworking father who can cross the boundaries of religion and culture to form friendships and who can be trusted not to smoke, drink or cuss around someone’s family?

Or, as the prosecution would have jurors believe, is Jessop the powerful FLDS man who benefited from the church grooming underage girls to accept marriage with men twice their age, married eight “purported” wives in addition to his legal wife, helped hide now imprisoned Warren Jeffs and endangered his unborn child and the victim while she was in labor?

Jessop could receive two to 20 years in prison.  He could also receive community supervision.

Anyone inclined to make predictions about how the jury will sentence in this case?

November 10, 2009 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Prosecutors seeking long prison term for ex-Rep. William Jefferson

As detailed in lots of media coverage, federal prosecutors are seeking a long prison term for former US Representative William Jefferson following his bribery convictions.  Yet, as these different headlines from different press sources reveal, it is not perfectly clear how long a prison term prosecutors are seeking:

I suspect this variation in reporting is a result of the government's guidelines, which prosecutors are likely stressing because they produce a range of 324-405 months of recommended imprisonment.

The piece from The BLT reports on how Jefferson's lawyers are countering the prosecution's sentencing recommendations:

Jefferson’s lawyers issued their own sentencing memorandum ... asking for a sentence of less than 10 years.  The memo notes that no member of Congress has ever been sentenced to more than 100 months in prison, and that other sentences in the Jefferson investigation have been less than a decade.

November 10, 2009 in Celebrity sentencings, Offender Characteristics, White-collar sentencing | Permalink | Comments (6) | TrackBack

November 9, 2009

Transcripts now available for oral arguments in Graham and Sullivan

Based on the early reports (discussed here), I am really excited to find time to review the transcripts from the oral arguments in the two juve LWOP cases heard today by the Supreme Court.  Everyone can now access the transcript from Graham here and from Sullivan here, and I hope by late tonight to be able to provide some early commentary on these big Eighth Amendment cases.

UPDATE:  After reading the transcripts, I am largely underwhelmed and not especially hopeful that these cases will produce a profound set of opinions.  All the Justices are understandably struggling with the stardard "where do we draw a line" challenge; but I got the nagging feeling that many Justices are more worried about the risk of drawing lines that would help juvenile defendants than worried about the risk that some states may regularly impose excessive punishments on certain juve offenders.

In addition, How Appealing has collected lots of the major media coverage of the arguments here.  I will be especially grateful to any readers who spotlight any particularly important part of this media coverage of the Graham and Sullivan arguments.

November 9, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (3) | TrackBack

Chief Justice apparently taking command in the Graham and Sullivan juve LWOP cases

This early report from SCOTUSblog, which is titled "Analysis: The Chief leads on juvenile sentences?," concerning on this morning's arguments in the big juve LWOP cases argued this morning heightens my expectation and hope that we could get some interestingly different line-ups in the decisions in these cases.  Here is the start of Lyle Denniston's analysis:

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Interesting.....!  And more commentary on this front to follow when I get a chance to consume the transcripts in these cases late tonight.

A few older CJ Roberts-related posts and some newer posts on the Graham and Sullivan cases:

November 9, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

"Sex With Informant Voids Prostitution Case"

The title of this post is the headline from this lengthy new report from The Legal Intelligencer.  Here is how the piece starts:

In a case of first impression, the Pennsylvania Superior Court ruled last week that state troopers committed "outrageous government conduct" when investigating alleged prostitution at a massage parlor in the Lehigh Valley by giving money to an undercover informant to have sex four times with two different women at the parlor.

On Thursday, the unanimous panel of Judges John T. Bender and Jack A. Panella and Senior Judge John T.J. Kelly Jr. upheld Lehigh County Common Pleas Judge Robert L. Steinberg's 2008 order dismissing charges of prostitution and promoting prostitution against defendant Sun Cha Chon.  Steinberg found the state police investigating alleged prostitution at Shiatsu Spa committed outrageous government conduct and violated Chon's constitutional rights to due process.

Though this ruling clearly hinges in part on the nature of the criminal activity which the government instigated, the notion that a criminal prosecution should be thwarted because of "outrageous government conduct" involving a confidential informant could have broad implications.  The press report indicates that the Lehigh County District Attorney's office plans to appeal the decision, and this case is worth watching if and when it gets to the Pennsylvania Supreme Court.

November 9, 2009 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Virginia clears final big legal hurdle for executing DC sniper on Tuesday

As detailed in this new Washington Post piece, today the Supreme Court "denied John Allen Muhammad's request to stay his execution, clearing the way for Virginia to put to death the man who terrorized the Washington region as the Beltway Sniper."  Here's more: 

Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor objected to the court's haste, saying it "highlights once again the perversity of executing inmates before their appeals process have been fully concluded."  Stevens, writing for the three, said Virginia had short-circuited the process by scheduling Muhammad's execution for Tuesday night, earlier than the court would normally have reviewed his petition for the court to take his case.

I am not sure what I find most remarkable about this case: the fact that Virginia has been successful in getting Muhammad to the door of the death chamber "only" six years after he was sentenced to death for his horrific crimes is almost as remarkable as the fact that the capital review process is usually so cumbersome that we call a six-year appeal process hasty in a seemingly open-and-shut capital case.

November 9, 2009 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (10) | TrackBack

SCOTUS summary reversal of Sixth Circuit capital ineffective assistance ruling

As detailed in this SCOTUSblog post, the Supreme Court issued "no new cert. grants this morning ... [but there was a] summary disposition in the case Bobby v. Van Hook(09-144), which was granted and reversed."  The per curiam ruling in Van Hook can be accessed at this link, and here is how it starts:

The Court of Appeals for the Sixth Circuit granted habeas relief to Robert Van Hook on the ground that he did not receive effective assistance of counsel during the sentencing phase of his capital trial.  Because we think it clear that Van Hook’s attorneys met the constitutional minimum of competence under the correct standard, we grant the petition and reverse.

Justice Alito has an interesting one-paragraph concurrence to the ruling in Van Hook.  Here it is:

I join the Court’s per curiam opinion but emphasize my understanding that the opinion in no way suggests that the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney’s performance meets the standard required by the Sixth Amendment.  The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership.  The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole.  It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination.

November 9, 2009 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

As mentioned in this recent post, I am expecting (or at least hoping) that the big Graham and Sullivan SCOTUS cases to be argued this morning will not simply turn on Justice Kennedy as a swing voter in another 5-4 split.  I make this prediction in part because I am expecting (or at least hoping) that the three most recent additions to the Supreme Court could provide some new perspectives and some unexpected excitement in these cases.

I suspect lots of folks will be watching closely during Graham and Sullivan the newest member of the Supreme Court, Justice Sotomayor, because these juve LWOP cases are probably the highest profile constitutional criminal cases that SCOTUS will consider this year.  And, while watching Justice Sotomayor, I will be wondering especially about whether she is uniquely attentive to and uniquely concerned about the racial, ethnic and class disparities that often play a role in harsh juve sentencing realities in many states.

But, when I get a chance to read the Graham and Sullivan transcripts, I am going to be especially watching for any "tells" from Chief Justice Roberts and Justice Alito.  In most major death penalty and police practice cases, CJ Robers and Justice Alito have tended to favor broad government power (especially Justice Alito).  But the issues in Graham and Sullivan do not arise in settings in which prior rulings by the Warren and Burger courts have previously curtailed government authority.  Rather, Graham and Sullivan raise hard (and conceptually under-developed) questions about how federal courts are supposed to give meaning and content to the Eighth Amendment's prohibition on "cruel and unusual punishments" in non-capital settings.  Though CJ Robers and Justice Alito may not bring new jurisprudential perspectives in these cases, I am sure hoping they might.

Of course, SCOTUS watchers surely should keep an eye on the other six Justices in Graham and Sullivan.  The veryyoung age at which Joe Sullivan was given an LWOP sentence might even impact how Justices Scalia and Thomas look at the case, and the repeat and serious nature of Terrence Graham's crimes might impact how Justices Breyer, Ginsburg and Stevens sort through these issues.  And, Justice Kennedy could still be a key "swinger" in both Graham and Sullivan despite my speculation and hope that these cases do not fully turn on his constitutional instincts.  Indeed, Justice Kennedy may be the most interesting to watch because he authored the two most pertinent precedents in Roper and Harmelin.

I could go on and on and on about these cases because they implicate are sooooo many interesting matters of constitutional jurisprudence and sentencing policy.  (For example, I could do a number of posts simply concerning the decision by Obama's Justice Department to sit on the sidelines for this critically important issue).  But, upon completing this post, I think I am going to await having the chance to read the argument transcripts before saying more about Graham and Sullivan.

A few different older and newer posts on issues related to the Graham and Sullivan cases:

November 9, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Who Sentences? | Permalink | Comments (4) | TrackBack

"President Barack Obama proving stingy with his pardon power"

The title of this post is the headline of this little piece today in the Chicago Tribune.  These basics about President Obama's poor clemency track record to date should be familiar to regular readers of this blog:

A lot of things have moved pretty quickly in the Obama administration. Presidential pardons are not among them.  In two and a quarter centuries, only four presidents have been slower than President Barack Obama in exercising their authority of executive clemency -- granting either pardons or commutations of sentences to the convicted -- with thousands of applications pending at the Justice Department.

Some related posts on federal clemency:

November 9, 2009 in Clemency and Pardons, Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Documenting the uptick in child porn prosecutions

My local paper has this article this morning, headlined "Authorities crack down on child-porn offenders," which documents the uptick in federal prosecutions of child porn offenses in one district and nationwide. Here are excerpts:

The recent arrest of a Hilliard middle-school teacher and coach on child-pornography charges shocked a community, but it was no surprise to members of law enforcement.

"There is no profile for these individuals," said Westerville Police Chief Joe Morbitzer. "There are so many different types, from all walks of life."  Among those prosecuted by federal authorities in the southern district of Ohio in the past year were a 42-year-old minister from Chillicothe, a 50-year-old information-technology worker for Ohio State University and a 56-year-old pediatrician from Troy.

Prosecutions have surged as investigators grapple with the increasing availability of child pornography on the Internet.  The U.S. attorney's office in Columbus prosecuted 44 people on child-pornography charges in the past 12 months, more than double the caseload during the previous year. Similar efforts are taking place nationwide.  Agents from federal, state and local agencies are forming more than 60 regional task forces, including one in Franklin County, to combat Internet crimes against children....

Two decades ago, law enforcement had all but eliminated child pornography, which then consisted of printed material and videos offered in adult book stores or through the mail.  But the advent of the Internet caused an explosion in the availability and graphic nature of the material....  The number of images sent to the National Center for Missing & Exploited Children after being intercepted by Internet-service providers and law-enforcement agencies has grown from 551,528 in 2004 to 8.6 million in 2008.

Interestingly, my paper also has this important new AP piece this morning, which is headlined "Framed for child porn _ by a PC virus."  Here are its main points: 

Of all the sinister things that Internet viruses do, this might be the worst: They can make you an unsuspecting collector of child pornography....  Pedophiles can exploit virus-infected PCs to remotely store and view their stash without fear they'll get caught.  Pranksters or someone trying to frame you can tap viruses to make it appear that you surf illegal Web sites....

An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus.  It can cost victims hundreds of thousands of dollars to prove their innocence.  Their situations are complicated by the fact that actual pedophiles often blame viruses — a defense rightfully viewed with skepticism by law enforcement.

A few related recent federal child porn prosecution and sentencing posts:

November 9, 2009 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

November 8, 2009

Capital justice greatly delayed (and very costly) in Kentucky

Thanks to How Appealing, I saw this long article from the Louisville Courier-Journal, which is headlined "Kentucky's troubled death-penalty system lets cases languish for decades."  This companion article, headlined "Killer's appeals drag on 29 years," explains how long capital justice gets delayed in the Blue Grass State.  Here are how the main article starts:

Kentucky is spending millions of dollars each year on a capital-punishment system so ineffective that more death-row inmates are dying of natural causes than are being executed. Since the death penalty was reinstated nationwide in 1976, Kentucky's trial courts have sentenced 92 defendants to death. Only three have been executed, compared to the five inmates who have died while their cases were being appealed.

In fact, because of Kentucky's ponderous system, more than one-third of the state's 36 current death-row inmates — 13 in all — have been there at least two decades. That's a higher percentage than in every other state except Tennessee, Nevada and Idaho, according to an analysis of information compiled by the federal Bureau of Justice Statistics.

In addition, 30 other inmates whom Kentucky circuit judges sent to death row over the past 33 years ultimately have seen their sentences reduced as the result of appeals, suggesting widespread flaws at the trial level.

The state Department of Public Advocacy estimates that Kentucky spends as much as $8million a year prosecuting, defending and incarcerating death-row inmates, even as state-ordered budget cuts impair other aspects of the judicial branch of government.

Critics of the capital-punishment system question whether Kentucky can afford to litigate death-penalty cases that drag on interminably and rarely end with an execution, especially when convicted murderers can be sentenced to life in prison without the possibility of parole.

November 8, 2009 in Death Penalty Reforms | Permalink | Comments (25) | TrackBack

Previewing tomorrow's big SCOTUS arguments in Graham and Sullivan juve LWOP cases

How Appealing has collected here lots of links to pieces discussing in the big Graham and Sullivan cases to be argued Monday, November 9 in the Supreme Court.  For all the essential case basics in a well presented form, I recommend Lyle Denniston's preview in this SCOTUSblog post titled "Inquiring into the juvenile mind," and Adam Liptak's preview in this New York Times article headlined "Justices Weigh Life in Prison for Youths Who Never Killed."  And, as detailed below, I have done a series of posts on these very important Eighth Amendment cases since cert was first granted earlier this year.

I have a lot of new thoughts about these cases and tomorrow's arguments, some of which I hope to share in future posts.  For now though, let me make one early prediction (which I reserve the right to change after argument): neither Graham or Sullivan will be resolved through 5-4 rulings.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

UPDATE:  Howard Bashman here has another collections of press stories about the Graham and Sullivan cases.  Readers get bonus points and my gratitude for spotlighting any special or noteworthy details in all this media coverage of these important SCOTUS cases.

November 8, 2009 in Graham and Sullivan Eighth Amendment cases, Who Sentences? | Permalink | Comments (1) | TrackBack

"Suspect Could Face Death Penalty in Fort Hood Shooting"

The title of this post is the headline of this FoxNews piece, which spotlights that the death penalty has entered conversations in the aftermath of the horrible events at Fort Hood earlier this week.  Here is the start of the article:

The Army psychiatrist suspected in Thursday's deadly Fort Hood rampage in Texas could get the death penalty if he is convicted of multiple counts of first-degree murder — and military law experts say the evidence against him will be substantial.

American-born Maj. Nidal Malik Hasan has yet to be charged but is expected to face at least 13 counts of murder, one for each of the victims who died, as well as numerous assault and weapons charges in a court-martial.

"Obviously, we're all guessing, but it's reasonable to believe that he will be convicted and sentenced to death," said retired Navy lawyer Philip Cave, now a military crimes defense attorney.

Cave estimated that Hasan, 39, would spend between five and 15 years in the military's court martial system. "It will be a long charge sheet," military law scholar Richard Rosen told KCBD.com, "one longer than I've ever seen in my life time in the Army."

November 8, 2009 in Death Penalty Reforms | Permalink | Comments (18) | TrackBack

Might new Governors in New Jersey and Virginia pioneer "smart on crime" innovations?

As noted in this post, there were not any obviously significant crime and justice story lines during this year's local elections.  But, given that New Jersey and Virginia are both interesting sentencing states and both now have new governors with criminal justice backgrounds, I cannot help but wonder and hope that one or both of these states could become effective laboratories for new "smart-on-crime" developments.

November 8, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

"Lighter sentence for murderer with 'bad genes'"

The title of this post is the headline of this interesting sentencing story coming from the publication Nature, which reports on these sentencing developments in Italy:

An Italian court has cut the sentence given to a convicted murderer by a year because he has genes linked to violent behaviour — the first time that behavioural genetics has affected a sentence passed by a European court.  But researchers contacted by Nature have questioned whether the decision was based on sound science.

Abdelmalek Bayout, an Algerian citizen who has lived in Italy since 1993, admitted in 2007 to stabbing and killing Walter Felipe Novoa Perez on 10 March.  Perez, a Colombian living in Italy, had, according to Bayout's testimony, insulted him over the kohl eye make-up the Algerian was wearing.  Bayout, a Muslim, claims he wore the make-up for religious reasons.

During the trial, Bayout's lawyer, Tania Cattarossi, asked the court to take into account that her client may have been mentally ill at the time of the murder.  After considering three psychiatric reports, the judge, Paolo Alessio Vernì, partially agreed that Bayout's psychiatric illness was a mitigating factor and sentenced him to 9 years and 2 months in prison — around three years less than Bayout would have received had he been deemed to be of sound mind.

But at an appeal hearing in May this year, Pier Valerio Reinotti, a judge of the Court of Appeal in Trieste, asked forensic scientists for a new independent psychiatric report to decide whether he should commute the sentence further.

For the new report, Pietro Pietrini, a molecular neuroscientist at Italy's University of Pisa, and Giuseppe Sartori, a cognitive neuroscientist at the University of Padova, conducted a series of tests and found abnormalities in brain-imaging scans and in five genes that have been linked to violent behaviour — including the gene encoding the neurotransmitter-metabolizing enzyme monoamine oxidase A (MAOA).  A 2002 study led by Terrie Moffitt, a geneticist at the Institute of Psychiatry, King's College, London, had found low levels of MAOA expression to be associated with aggressiveness and criminal conduct of young boys raised in abusive environments.

In the report, Pietrini and Sartori concluded that Bayout's genes would make him more prone to behaving violently if provoked.  "There's increasing evidence that some genes together with a particular environmental insult may predispose people to certain behaviour," says Pietrini.

On the basis of the genetic tests, Judge Reinotti docked a further year off the defendant's sentence, arguing that the defendant's genes "would make him particularly aggressive in stressful situations".  Giving his verdict, Reinotti said he had found the MAOA evidence particularly compelling....

But forensic scientists and geneticists contacted by Nature question whether the scientific evidence supports the conclusions reached in the psychiatric report presented to Judge Reinotti.  "We don't know how the whole genome functions and the [possible] protective effects of other genes," says Giuseppe Novelli, a forensic scientist and geneticist at the University Tor Vergata in Rome.  Tests for single genes such as MAOA are "useless and expensive", he adds.

November 8, 2009 in Offender Characteristics, Sentencing around the world | Permalink | Comments (7) | TrackBack